Dana v. Farrington

CourtSupreme Court of Minnesota (US)
Citation4 Minn. 335
PartiesN. J. T. DANA et al. vs. GEORGE W. FARRINGTON AND WIFE.
Decision Date01 January 1860
(4 Minn. R. p. 433.)

The statute requires a notice containing certain matters to be published six weeks. Comp. Stat. 644. The complaint alleges that such a notice was published. The answer admits that a proper notice was published, but says it was for the 23d instead of the 25th, and was not published six weeks. The special verdict finds that a notice for the 23d of May was first published, but that the time of sale was changed to the 25th of May, and the notice as changed was first published on the 12th of April, and then as changed published six weeks. This becomes apparent when the verdict is considered in connection with the submission of the issues to the jury by the judge. The statute says (p. 644, § 4), "notice may be given by publishing the same six weeks." This was done. The statute was complied with. Now, does the fact that notice for a different day had once been given, render void what is a perfectly legal notice?

Points and authorities for defendants in error: —

1. The statutory notice is a condition precedent to the execution of the power, and must be strictly complied with. King v. Duntz, 11 Barb. 192; Sherwood v. Reade, 7 Hill, 431; Van Slyke v. Shelden, 9 Barb. 278.

2. The alteration in the notice, fixing the time of sale at a later day than as originally published, without a special notice of postponement required by the statute, was in violation of the statute, and therefore void. Comp. Stat. 644; Jackson v. Clark, 7 Johns. 217; Miller v. Hull, 4 Denio, 104.

3. The defendant showed prejudice. Johnson v. Williams, 4 Minn. [260].

Allis & Peckham, for plaintiffs in error.

H. J. Horn, for defendants in error.

FLANDRAU, J.

This action was brought to recover possession of certain real estate in the City of St. Paul, which the plaintiffs claim to be entitled to, by virtue of a sale under a mortgage foreclosure by advertisement under the statute. The defense set up in the answer, which we shall alone notice, is, that the sale was irregular and void, the notice having stated originally that the sale would take place on the 23d of May, 1860, and that the plaintiffs had changed it to the 25th of May, 1860, whereby the defendants were misled, &c. The evidence disclosed that such alteration had been made, and the jury in their special verdict find, among other things, "That the notice of sale was published for six weeks successively before sale." The counsel for the plaintiffs in error, in preparing the papers for this court, obtained a statement or history of the manner in which the several issues or questions were submitted to the jury by the court, signed by the judge who tried the cause, which statement was designed, in one particular, to throw light upon the special verdict, and show which notice was intended by the jury in their finding above quoted, that "the notice of sale was published for six weeks successively before sale." The counsel for the defendants in error moved this court to strike out such statement, on the ground that no aid can be given to a special finding of facts by a jury, by the court or otherwise, that they must speak for themselves.

We think the statute designed clearly that every verdict must be full in itself, and that, after it is once recorded, it must stand or fall upon its own contents. Section 32, on page 560 of the Compiled Statutes, provides as follows: "When a verdict is rendered, and before it is recorded, the jury may be polled on the request of either party, for which purpose each juror must be asked whether it be his verdict; if any one answer in the negative, the jury must be sent out for further deliberation. If the verdict is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be again sent out." The succeeding sections give further facilities for...

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